COURT FILE AND PARTIES

Court File No.: CR-21-00000959-0000

Date: September 8, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King

Jelena Vlacic and Sydney Hopkins, for the Crown

- and -

L.L.

Anthony Bugo, for the Accused

Before: LeMay J.

Heard: April 8-12, 15, 16, 18, 19, 22-24, 26, May 28, June 10, 11, July 22, 23, September 9, 12, October 15, 28, 31, 2024, January 8, 2025

RESTRICTION ON PUBLICATION

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

This decision has been anonymized so that it complies with this direction.

REASONS FOR JUDGMENT

Overview

[1] The accused, L.L., was in a relationship with K.D., who is the complainant in respect of some of the charges that the accused faces. The accused has had significant substance abuse issues, including in respect of alcohol and cocaine.

[2] The relationship between the accused and the complainant ended in June of 2019, and the accused was subsequently charged with nine counts comprising various offences. This series of charges flows from two discrete incidents. The first was a series of events on May 18th and 19th, 2019. That series of events resulted in charges of break and enter, uttering threats, assault and sexual assault on K.D. The second was a series of events on June 15th and 16th, 2019. That series of events resulted in charges of uttering threats, break and enter, arson and escaping lawful custody. The arson was in respect of K.D.'s house.

[3] Prior to closing arguments, the Crown conceded that Count 1, in respect of an assault during the May incident, had not been proven beyond a reasonable doubt. The Crown also invited the Court to dismiss Count 6, which was a charge of uttering threats relating to the June incident. Verdicts of not guilty will be registered in respect of both of these charges.

[4] I heard evidence from the accused and the complainant. I also heard evidence from a number of the other individuals involved in both incidents. In addition, I heard evidence from the police officers who arrested the accused on the morning of June 16th, 2019. That evidence applied to both a Charter motion (reasons set out at 2025 ONSC 4843) and to the merits of this case.

[5] Finally, I heard evidence from three expert witnesses. Mr. Ryan Locke was a fire investigator who provided expert evidence on forensic fire investigation, including the origin of fires and sources of ignition. He was called by the Crown.

[6] Dr. Joel Mayer is a toxicologist and pharmacologist. He testified about the effects of various substances in the body. Dr. Julian Gojer is a medical doctor and a psychiatrist. He testified about addictions. The expert evidence from the two doctors was called by the defence, as part of the accused's defence that he was in an automatistic state at the time that the offences were allegedly committed.

[7] My reasons will be divided into the following sections:

a) A summary of the background facts of the case, the procedure that was used and the evidence that was heard at trial.

b) A review of the principles of expert evidence and why that evidence was admissible in this case.

c) A review of the relevant legal principles respecting credibility and reliability.

d) A review of the specific evidence of P.M. L.L. was in a relationship with P.M. after these events. That relationship ended in criminal charges. P.M. testified that L.L. confessed to her that he remembered committing the arson.

e) A review of the facts and elements in respect of each of the charges. This review will include my factual findings in respect of each of the charges.

f) A review of the law of automatism and its applicability to this case for each of the major incidents.

[8] I should explain at the outset that I have divided the discussion of the offences into two main sections. I have done this because, in argument, both Crown and Defence agreed that the Crown bore the burden of proving, beyond a reasonable doubt, the elements of each offence. However, even if the Crown proved the elements of each offence beyond a reasonable doubt, the accused is still advancing an argument of automatism for both incidents. That defence must be considered separately. However, the facts relating to the intent elements for each offence are very similar to the facts that must be considered in respect of the defence raised by the accused. Therefore, I will deal with both of those issues under the automatism discussion, even though they are distinct questions.

Background

[9] In this section, I am going to provide a broad overview of the two incidents in this case. That overview is designed to make it easier to follow the remainder of these reasons. Once that overview is provided, I will then outline the procedural issues in this case as well as the evidence that I heard.

a) The May 18-19, 2019, Incident

[10] In May of 2019, L.L. was twenty-seven years old. He was thirty-two at the time of the trial. As I have noted, L.L. and K.D. were in a relationship. That relationship had started at some point in December of 2018. K.D. had two children from a previous relationship. At the time of the incidents in May of 2019, the children were a 5-year-old girl and a 1-year-old boy. K.D.'s previous relationship had ended because her former partner had substance abuse issues. At the time of this relationship, she was twenty-five. She turned twenty-six shortly before the June incident.

[11] There are some other parties that were involved in this case. C.S. had been friends on and off with L.L. since they were in high school and played hockey together. At points, C.S. and L.L. were such good friends that their families were also friends. In May of 2019, C.S. was in a relationship with C.D. and they had a child. They remained a couple at the time of the trial.

[12] On the evening of May 18th, 2019, a barbecue was being held at K.D.'s house, where she lived with her father and her two children. On the evening of May 18th to May 19th, K.D.'s father was not home. L.L. began to drink in the late afternoon before C.S., C.D. and their child arrived. L.L. consumed a significant amount of alcohol. In addition, there was testimony that he had consumed some of K.D.'s Clonazepam, some cocaine as well as some Buckley's cold medicine. The Buckleys was consumed as both he and K.D. were suffering from a cold and/or other type of illness.

[13] L.L. had begun drinking before the barbecue began. The barbecue started about 5:00 p.m. and, C.S., C.D., L.L. and K.D. were all present. During the course of the barbecue, L.L. had become very intoxicated and K.D. hid a bottle of whisky that L.L. was looking for. With C.S.'s encouragement, he found it and he and C.S. consumed some of it.

[14] At approximately 9:00 p.m., K.D. left to go and pick up her children from their father's house. She was gone approximately a half an hour. When she returned, she put the children to bed and C.S. and C.D. left with their child. Very shortly after they left, L.L. was looking for the bottle of whisky, which K.D. had hidden again. This time she had hidden it in the front closet.

[15] At this point, some of the events are recorded on videos that were shot on K.D.'s cellphone. The first two of these videos, taken around 10:30 p.m., show that L.L. was asking for the bottle of whisky, spraying K.S. with whipped cream and throwing flowers at her.

[16] After the second video was taken, L.L. locked K.D. out of her house. She was screaming and banging on the back door. Ultimately after somewhere between two and five minutes, L.L. let K.D. back into the house. In this sequence of events, somewhere around 11:30 p.m., L.L. continued to argue with K.D. and told her that he was going to leave in her vehicle. He actually did so, backing the car out of the driveway and driving it away. As he drove away, the car door was open until he started to drive along the road. Then he closed it.

[17] L.L. came back to the house about twenty minutes later, very angry with K.D. Apparently, during the absence, K.D. had called L.L.'s mother to report to her that L.L. had stolen K.D.'s car and L.L. was angry with her for having telephoned his mother. While he was gone, L.L. also broke a window in K.D.'s car. Although no one saw L.L. break the window, K.D. reported to the police that the rear driver's side window was broken by persons unknown. K.D. did not remember making this report when she testified before me.

[18] After L.L. came to the house, K.D. called C.S. to ask him to come back and help her deal with L.L. Shortly after this telephone call, L.L. smashed K.D's cellphone, when they were fighting in the kitchen. K.D. testified that L.L. was pulling her hair and that she was screaming and went to the ground to try and wiggle her way out of L.L.'s grip and it was at this point, L.L. smashed K.D.'s cellphone. L.L. testified that he remembers smashing the phone but not why he did so.

[19] Shortly after these events, C.S arrived at K.D.'s house and was able to calm L.L. down. C.S took L.L. back to his house, which was near the house where K.D. lived. The two of them had a cigarette in the garage and then C.S. told L.L. to go inside and relax. Five minutes later, C.S. came in and discovered the back door open and L.L. gone.

[20] In the meantime, K.D. had locked the house up and gone upstairs to bed. Sometime after going to bed, she heard the sound of someone in the house. She knew that it was L.L. because he was wearing distinctive "slush pants" that made a particular sound when he walked. She also knew that he had climbed in the basement window on a previous occasion. She testified that this window was sometimes used to get into the house and that L.L. had arrived at her house one day about a month before the May incident when no one was home, and she told him to climb in this window to gain access to the house.

[21] There were subsequent interactions between the two of them. On K.D.'s evidence, L.L. threatened her and her children and used those threats to force K.D. to perform oral sex on him. In L.L.'s testimony, he has no recollection of any of these events. As these events give rise to the charges in counts 3 to 5 before the Court, I will address them in more detail below.

[22] The next morning, K.D. and L.L. had a very brief discussion about this incident in which K.D. told L.L. to leave her house. There was then a second discussion in L.L.'s truck in a parking lot near a school either later in the day or a day or two later. At that point, K.D. showed L.L. the bruising that she had on her neck and on her left arm. Although L.L. told K.D. that he did not remember any of the events, he apologized for what K.D. told him had happened.

[23] L.L. also wanted to go to counselling with K.D., as he had been seeing an addictions counselor and wanted to talk about this incident. L.L. also told K.D. that he was not going to drink again, and he wanted to stay together. K.D. and L.L. continued their relationship for about another month, and there was a two-week period in which L.L. spent every night at K.D.'s house.

[24] I understand that the relationship ended sometime in early June. L.L. testified that he had been staying at K.D.'s house and had stopped drinking. One evening, on the way home from work, he stopped at a bar, had a couple of drinks and ended up going on a four-day bender. He does not recall what he drank during that four-day bender.

b) The June 15-16, 2019, Incident

[25] On the evening of June 15th, 2019, a birthday party was being held for both K.D. and C.S. at the house where C.S. and C.D. lived with C.S.'s parents. C.S.'s mother, K.S. was around that evening and also testified during the course of this case. L.L. and K.D. had broken up a couple of days previously, but L.L. had been invited to the party because K.D. wanted to have him there.

[26] L.L. arrived at C.S.'s house sometime around 7:00 p.m. When L.L. arrived, he had some cocaine with C.S. C.S. testified that it was a "key bump", but L.L. testified that he had more than that. L.L. remained at the house for approximately an hour and a half. He was also drinking beer. When L.L. tried to leave, C.S. and another friend, N. (who did not testify), tried to block his way and prevent him from driving because he was drinking. L.L. ran away from them, hid in some bushes, and then got into his car from the passenger side and drove away. L.L. was gone for two to three hours.

[27] Sometime between 10:00 p.m. and 11:00 p.m., L.L. returned to C.S.'s residence. He tried to persuade K.D. to leave with him, but she refused. He then left the party again. Others tried to prevent him from driving away in his own car, but he managed to evade them and drive away. He then exchanged a number of text messages with K.D. about where he was, what he was doing and where he was going.

[28] Approximately a half an hour later, around 11:30 p.m., he returned to C.S.'s residence and was banging on the back door demanding to be let in. K.S., C.S.'s mother, came to the door to try and talk to L.L, who she had known for a very long time. She let him into the house, and he then stormed around the house looking for K.D., who had been concealing herself on the couch immediately to the left of the patio doors where L.L. had entered the house. When L.L. went upstairs, K.D. went downstairs.

[29] After running through the house looking for K.S., L.L. was escorted out of the house by C.S. He came back almost immediately, as he had forgotten his cell-phone, which C.S. gave to him. L.L. then left again. K.D. remained at the party with the others.

[30] At this point, there were some further text messages that were sent by L.L. to K.D. much later in the evening. At about the same time as these text messages were sent, emergency services were dispatched to K.D.'s residence. Fires had been set at K.D.'s residence, and the police and fire were on scene. K.D., C.D. and others arrived at the house. L.L. was spotted at the scene and arrested. He escaped from the vehicle where he had been put under arrest at about 4:00 a.m. He then roamed the neighbourhood for a while and arrived at C.S.'s residence just before 6:00 a.m.

[31] When L.L. arrived at C.S.'s residence, he asked them to be let in and was refused. Then, he asked them to call his mother. They called the police and told him that he could stay in the backyard if he wanted to. He asked for a cigarette and is told that he was welcome to see if there was one in the backyard. He found one and smoked it.

[32] The police then arrived, L.L. was arrested and taken to the police station where he made a statement. The events flowing from his arrest are detailed in the companion decision and I repeat and rely on the facts set out in that decision in order to make this decision.

[33] With this factual summary in mind, I now turn to the evidence.

Expert Evidence

[34] I heard evidence from three experts. The expertise of these three experts was not challenged by the other side and their expertise was conceded. However, I have a gatekeeper function in respect of expert evidence, even when it is admitted on consent. Bruff-Murphy et al. v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584.

[35] As a result, the framework set out in White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 must be applied to the proposed expert evidence. This requires me to consider the four threshold requirements set out in R. v. Mohan, [1994] 2 S.C.R. 9. Those requirements are relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert. Once these factors are considered, I then balance the probative value and prejudicial effect of the evidence.

[36] The first expert was Mr. Ryan Lock who was a provincial investigator with the Office of the Fire Marshall from February of 2018 to January of 2023. His resume also discloses that he has various national certificates in fire investigation and that he had done a number of fire investigations. He was qualified to give expert evidence in the area of forensic fire investigations. Specifically, he was qualified to offer opinions on fire scene investigations on fire origin, the source of ignition and factors affecting the development and spread of a fire.

[37] Mr. Lock's evidence was necessary as I have no knowledge about how fires develop or how one would tell what the source of ignition was. It was also reliable, and Mr. Lock was a properly qualified expert as he had training and knowledge that would assist the Court. Finally, given that one of the charges is arson, the evidence on how fires started will be relevant. On that basis, I admitted the evidence.

[38] Then there was Dr. Joel Mayer, who is a toxicologist and a pharmacologist. He was called by the defence. His academic qualifications are a B.Sc., an M.Sc. and a PhD in Pharmacology and Toxicology. He worked for the Centre for Forensic Sciences from 1992 to 2008, ending his career there as the Deputy Director of the CFS. Since 2009, he has been a forensic toxicology and forensic science consultant, and he is also currently an adjunct professor at the University of Toronto.

[39] Dr. Mayer was qualified as an expert in the areas of forensic toxicology and pharmacology, including the pharmacology and toxicology of alcohol and drugs in the body. This includes the absorption, distribution and elimination of alcohol and drugs as well as their effects on the central nervous system and other organs. His evidence was necessary as I have no scientific knowledge in any of the areas in which Dr. Mayer provided testimony. He was clearly qualified, both academically and through his experience, to provide this testimony. Finally, given that one of the defences is automatism caused by drug and alcohol consumption, Dr. Mayer's evidence is relevant.

[40] Finally, there was Dr. Julian Gojer. He is a psychiatrist as well as a member of the Law Society of Ontario. He has treated people with substance abuse issues as well as dealing with people who have brain disorders and diseases of the mind. He has also testified in a number of other cases.

[41] Dr. Gojer was qualified as a forensic psychiatrist. Specifically, he was qualified to give evidence on the assessment, treatment and management of mental illnesses and substance use disorders. He was also qualified to give evidence on the effect of drugs, alcohol and mental illness on the mind and body at the time of the alleged offences, with respect to intoxication and automatism.

[42] Again, this evidence was necessary as I have no knowledge in the areas in which Dr. Gojer was going to give testimony. He was also qualified, both through his academic qualifications and his experience, to give this testimony. Finally, given that one of the defence's arguments was automatism as a result of intoxication, the evidence is relevant.

[43] While the qualifications of the experts were admitted, they were all cross-examined on substance of their opinions. I will address any issues that arise with their evidence in the relevant sections.

Other Evidence

[44] As I have noted, there was a voir dire in this matter to determine whether the statement that L.L. gave police on June 16th, 2019 was voluntary. I heard considerable evidence on that voir dire. Counsel agreed that the evidence I heard on the voir dire could be used for the purposes of the trial, as appropriate. Counsel also agreed that certain of the exhibits that were entered on the voir dire should be marked as exhibits and considered in the trial.

[45] Given that agreement, I would note that the factual findings set out in the voir dire decision apply to the trial as well and vice versa as appropriate. I have considered all of the evidence in making the decisions on the merits of the case. I have only considered the evidence that was tendered in the voir dire for the purposes of the voluntariness application and the Charter motions.

[46] I ruled that the accused's statement could be used for cross-examination purposes, the accused testified and the Crown did cross-examine the accused on portions of his statement.

Credibility and Reliability

[47] Credibility and reliability are two different, but related, concepts. Credibility deals with the honesty, or veracity, of a witness. Reliability has to do with the accuracy of a witness's testimony: R. v. Sanichar, 2012 ONCA 117 at para. 69. The reliability of a witness's testimony depends on their ability to observe, recall and recount the events at issue: R. v. H.C., 2009 ONCA 56 at para. 41.

[48] The assessment of the credibility and reliability of witness testimony is an individualized exercise. A determination of innocence or guilt cannot devolve into a credibility contest between the complainant and the accused. R. v. L.H., [2007] O.J. No. 1588 (Ont. S.C.J.) at paras. 85-86.

[49] In this case, the defence is challenging the reliability of most of the Crown's witnesses. As a general matter, however, they are only challenging the credibility of P.M. The Crown is challenging the credibility of L.L.

[50] Given the individualized nature of the credibility and reliability assessment, I will generally deal with the reliability issues (and the credibility issues with L.L.) as I set out my findings of fact on each issue, and I will apply these principles. However, the evidence of P.M. is extricable from the evidence of the rest of the witnesses. I will deal with that evidence first.

Evidence of P.M.

[51] L.L. has testified that he does not remember the events of either evening and he is advancing an automatism defence. As a result, the evidence of P.M. was tendered by the Crown in order to prove that L.L. had an independent recollection of these events and that there was no merit to his automatism defence. In general terms, P.M. has testified that L.L. has admitted to her that he remembers significant portions of the events on both May 18-19, 2019 and June 15-16, 2019 and that the events described by the Crown took place.

[52] As I have noted, P.M. and L.L. were in a serious relationship from August of 2021 through to December of 2022. In order to understand my conclusions on this evidence, it is helpful to divide my analysis into two sections:

a) The relationship between P.M. and L.L.

b) P.M.'s claims of what L.L. told her about the events involving K.D.

[53] I will deal with each area in turn. Before doing so, however, there are two preliminary points that I must address. First, I understand that the end of the relationship between P.M. and L.L. resulted in charges that were addressed by a Court. The end of the relationship was clearly unhappy. As a result, in the course of P.M.'s testimony, there were a number of occasions where P.M. gave testimony about what would be legally described as prior discreditable conduct. As I indicated in response to a number of objections from L.L.'s counsel, I viewed all of this evidence as inadmissible. I would also note that the Crown was not seeking to elicit this evidence, and I have not considered it in reaching my decision.

[54] Second, during her examination-in-chief, P.M. seemed to suggest that L.L. had disclosed some of the evidence in respect of the various events during the course of Alcoholics Anonymous meetings, where both P.M. and L.L. were present as participants. There are interesting issues as to whether privilege protects those conversations. It is not necessary for me to decide those issues, however, as the Crown and defence both agreed that the Crown would not rely on those events and the defence would not cross-examine on them. With that agreement, it is not necessary for me to consider any of that evidence and I have not done so.

a) The Relationship Between P.M. and L.L.

[55] After the events in May and June of 2019, L.L. started attending Alcoholics Anonymous ("AA") meetings. In February of 2021, P.M. had recently had some experiences that caused her to decide that she also needed to attend AA meetings. She met L.L. in one of these meetings.

[56] The two of them began to discuss the experiences that had brought them to AA, as well as other personal issues. They became friends, and then ended up in a relationship. By the summer of 2021, they were engaged. The relationship had its tumultuous moments and there were a couple of occasions when P.M. and L.L. broke up. They got back together after a couple of these breakups.

[57] However, the relationship ended for good on December 24th, 2022. P.M. brought criminal charges against L.L. Those charges were disposed of by the Court in October of 2023, with L.L. pleading guilty. He received a conditional discharge with probation and completed the PAR program.

[58] I understand that there is no dispute that, at L.L.'s sentencing hearing, which was held on October 17th, 2023, P.M. interrupted the sentencing hearing and claimed that L.L. was sober when the allegations against her took place. However, she was then confronted with the domestic violence incident report where she said that L.L. had been on a 5 day "bender". It was clear that P.M. was unhappy with the sentence given to L.L.

[59] Later that same day, K.D. contacted the OIC for this case and advised that P.M was a witness who had information about the incidents involving K.D. and L.L. P.M. came to K.D.'s attention because P.M. had contacted her, claiming to have information. I now turn to that information.

b) P.M.'s Claims About L.L.'s Conduct

[60] P.M. testified that L.L. had told her about the incident when they started dating. In an original statement made in December of 2022 about her own concerns, P.M. is asked whether L.L. told her anything about the case involving K.D. She responds by saying "no, all he told me was that he was blacked out."

[61] However, when P.M. was interviewed in December of 2023, she told the police that L.L. told her that he recalled some of the events. P.M. told the police that L.L. recalled the sexual assault. However, P.M. provided significantly more details about the allegation of arson, and provided significantly more details about those allegations in her testimony before this Court.

[62] In her December 2023 police statement, P.M. was cautioned to tell the police the truth and to not guess at events. She then told the police that L.L. started a fire with a red jerry can full of gasoline from the garage. At trial, however, she acknowledged that she had provided the information about the jerry can because it made sense, and that L.L. never actually told her this information.

[63] In respect of the fire itself, at trial P.M. testified that L.L. told her that he went to K.D.'s house, piled a bunch of clothing and cardboard in the basement. He then got gasoline from the garage and lit the fire. P.M. testified that L.L. said that he went to run up the stairs to get out and slipped, and thought he might get stuck in the fire. She then testified that he got up on the main floor and tried to light the drapes on fire.

[64] P.M. testified that L.L. told her that he had gone home and then came back to the fire when he got a telephone call. When he got that call, he went back to the area of K.D.'s house, was arrested and put in the back of a police car. P.M. testified that L.L. then was left alone in the car, leveraged his body to kick out the window and went out of the window headfirst. P.M. testified that L.L. told her that he then was on the run and ended up back at the house where the party had been earlier in the evening.

[65] P.M. also testified that L.L. sent her some of the police statements before his preliminary inquiry and that she read those while she was still in a relationship with L.L. She also testified that she had at least one, and perhaps as many as three, telephone calls with K.D. The first of those phone calls lasted for around an hour.

c) Conclusions in Respect of P.M.'s Evidence

[66] I reject P.M.'s evidence as neither credible nor reliable for the following reasons:

a) Her story changed significantly between December of 2022, when she said L.L. remembered nothing, and December of 2023, when she told police that L.L. remembered significant details about the events, and particularly about the night that the house was set on fire.

b) P.M.'s approach to the sentencing hearing involving her allegations against L.L. demonstrates that P.M. was unhappy that L.L. had not received jail time as a result of the charges she brought. This suggests a clear motive to fabricate her evidence about L.L. in this case.

c) P.M.'s evidence about what L.L. had allegedly told her was internally inconsistent. In December of 2023, she told the interviewing officer that L.L. had used a jerry can to bring gasoline to light one of the fires in the house. At trial, she acknowledges that this evidence was a "mistake", as there was no evidence of there being any jerry cans around at all. There was also no real evidence of gasoline being present as an accelerant at the fire either.

d) P.M.'s evidence about what L.L. had allegedly told her he remembered was inconsistent with what actually happened. P.M. testified that there were two fires that were set (including the drapes) when, in actuality, there were three separate sources of ignition.

e) Portions of P.M.'s evidence are equivocal. One example is her evidence about whether L.L. remembered the events in respect of the sexual assault allegations on May 18-19, 2019. Ultimately, P.M. accepted that, at the very least, L.L. is not sure he can remember what happened.

[67] I should briefly deal with Crown Counsel's assertion that the mistake about the jerry can was simply an error in P.M.'s evidence and that she "spontaneously" corrected the error prior to trial. I accept that she changed her evidence prior to trial and told the officers that she was wrong in her December 2023 police statement when she said that L.L. had obtained fuel from a jerry can. However, her story had changed three times over the course of the year and a half between the end of her engagement to L.L. and trial. This was not a simple error. P.M. had given evidence that she thought would make sense, and when she discovered it was inconsistent with the known facts, she tailored her evidence to fit the known facts. This is not a hallmark of a credible or reliable witness, to put it mildly.

[68] In the end, I reject P.M.'s assertions that L.L. told her that he remembered anything from these events. As a result, I will not rely on P.M.'s evidence any further in this case, with one exception. P.M. testified that K.D. told her that K.D. would attend at P.M.'s Court appearance to be supportive and that P.M. would be supportive in K.D.'s Court case. That fact may be relevant to my assessment of K.D.'s credibility.

The Charges Relating to the May Incident

[69] The following charges relate to the incident in May of 2019:

Count 1: [L.L.] stands charged: That he, between the 18th day of May, 2019, and the 19th day of May, 2019, at the City of Brampton, in the Central West Region, did unlawfully commit an assault on [K.D.], contrary to section 266 of the Criminal Code of Canada;

Count 2: [L.L.] further stands charged: That he, on or about the 19th day of May, 2019, at the City of Brampton, in the Central West Region, did break and enter a certain place, to wit: a dwelling house situate at [redacted], with intent to commit an indictable offence therein, contrary to section 348(1)(a) of the Criminal Code of Canada;

Count 3: [L.L.] further stands charged: That he, on or about the 19th day of May, 2019, at the City of Brampton, in the Central West Region, did in person, knowingly utter a threat to [K.D.] to cause death to [K.D.], contrary to section 264.1(1)(a) of the Criminal Code of Canada;

Count 4: [L.L.] further stands charged: That he, on or about the 19th day of May, 2019, at the City of Brampton, in the Central West Region, did in person, knowingly utter a threat to [K.D.] to burn, real property of [K.D.] to wit: her dwelling house, contrary to section 264.1(1)(b) of the Criminal Code of Canada;

Count 5: [L.L.] further stands charged: That he, on or about the 19th day of May, 2019, at the City of Brampton, in the Central West Region, did commit a sexual assault on [K.D.], contrary to section 271 of the Criminal Code of Canada.

[70] As previously set out, the Crown has conceded that an acquittal should be registered on Count 1. The remaining counts relate to the interactions between K.D. and L.L. after L.L. returned to K.D.'s house and entered through the basement window. I will deal with the legal and factual issues in respect of each count in turn.

[71] In this section, I will set out all of the elements of each of the offences, including the mens rea elements. However, since the defence of automatism has been raised in this case, I will be addressing the mental element when I consider the issues in respect of automatism.

Count 2 - Breaking and Entering With Intent

[72] When L.L returned to K.D.'s house after C.S. had taken him away, he entered through the basement window. I should stop briefly and note that, at this point in the evening, it is clear to me that K.D. would have not wanted to have L.L. back in the house. The two of them had been fighting, and L.L. had locked her out of the house previously. K.D. had also called C.S. to come and help her deal with L.L. Finally, the evidence I heard established that L.L. knew that the basement window did not lock and could be used to enter the house. For these reasons, I accept that L.L. entered the house through this window.

[73] This brings me to the elements of the offence. The accused is charged under section 348(1)(a) of the Criminal Code with breaking and entering with the intent to commit an indictable offence. The elements of this charge are as follows:

a) That L.L. broke into K.D.'s house;

b) That L.L. entered into K.D.'s house; and

c) That L.L. intended to commit an indictable offence in the place where he broke and entered.

[74] I note that each of these elements must be proven beyond a reasonable doubt for me to convict L.L. of this offence. That requirement of proof beyond a reasonable doubt in respect of each essential element of an offence applies to all of the other offences that I will review, but I do not intend to repeat this requirement each time.

Counts 3 and 4

[75] Counts 3 and 4 both deal with threats that were allegedly made to K.D. by L.L. The counts are broken down between uttering threats to damage property and uttering threats to cause death or bodily harm. The elements of these offences are set out in section 264.1(1) of the Criminal Code as follows:

a) That L.L. made a threat;

b) That the threat was to cause death or bodily harm to K.D.; and

c) That L.L. made the threat knowingly.

[76] The test for this offence is an objective one, requiring the Court to look all of the circumstances. In R. v. Clemente, [1994] 2 S.C.R. 758 at p. 763, the Court stated:

Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.

[77] Obviously words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat. If I am satisfied beyond a reasonable doubt that the threats in this case were uttered, they were not spoken in jest and this exception does not apply.

[78] Whether these threats were uttered also relates to the question of whether the sexual assault took place. I will deal with the elements of the sexual assault charge separately. I will then deal with my factual findings in respect of the events in the early morning hours of May 19th, 2019.

Count 5 - Sexual Assault

[79] The elements that the Crown must establish beyond a reasonable doubt for this offence are:

a) That L.L. intentionally touched K.D.

b) That L.L. intentionally touched K.D. in circumstances of a sexual nature.

c) That K.D. did not consent to the sexual touching by L.L.; and

d) That L.L. knew that K.D. did not consent to the sexual touching by L.L.

[80] Each of these elements must be proven beyond a reasonable doubt. I must consider whether the evidence, taken as a whole, leads me to conclude beyond a reasonable doubt that the events described by K.D. actually took place. If so, then the actus reus of the offence of sexual assault would be established, and I would address the mens rea and whether voluntariness was vitiated by automatism separately.

[81] This brings me to a detailed review of the evidence of K.D. in terms of the whole evening. I am reviewing all of that evidence because I must assess K.D.'s credibility holistically in determining whether I have a reasonable doubt. I must also assess the accused's testimony in the same manner. In that respect, I am mindful of the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742. That test, as modified by subsequent case-law, requires me to conduct a four-step analysis:

a) If I believe the accused's evidence that he did not commit the offence, then I must find him not guilty.

b) If I cannot decide what I believe, I must find the accused not guilty.

c) Even if I do not believe the accused's evidence, if it leaves me with a reasonable doubt about an essential element of the offence he is charged with, then I must find him not guilty.

d) Even if the accused's evidence does not leave me with a reasonable doubt, I can only convict him if the rest of the evidence I do accept proves his guilt beyond a reasonable doubt.

[82] In this case, the accused testified. However, he testified that he had no memory of the incidents in question. Crown counsel challenges this assertion and says that L.L. is feigning his lack of memory. Defence counsel argues that L.L.'s evidence was credible and reliable at least in part because L.L. did not seek to paint himself in a good light and because his evidence is supported by other evidence given at trial.

The Events of May 19th, 2019

[83] The parties have differing views as to the credibility and reliability of K.D.'s evidence. The accused says that it was sufficiently unreliable and/or lacking in credibility as to leave me with a reasonable doubt of counts 2 to 5 of the indictment. The Crown argues that K.D. was a credible witness who was unshaken by defence in cross examination.

[84] I will address the major evidentiary points raised by the parties in respect of K.D.'s evidence as I set out my findings as to what happened. While I am not required to review every alleged inconsistency in K.D.'s evidence, I must consider whether, and to what extent, the inconsistencies affect the core of K.D.'s evidence: R. v. R.A., 2017 ONCA 714, aff'd 2018 SCC 13, [2018] 1 S.C.R. 307.

[85] I should also note that it is not sufficient for me to conclude that K.D. was a credible witness. Instead, the test is whether I am satisfied beyond a reasonable doubt that the accused committed one or more of the offences he is charged with: R. v. J.J.R.D., (2006) 215 C.C.C. (3d) 252.

[86] As I have noted above, L.L. entered K.D.'s house through the basement window. He immediately went upstairs to the bedroom where K.D. was lying with her infant son and daughter. When L.L. got there, he grabbed K.D. by the throat and made a comment along the lines of "so you want to call people". There were words exchanged, and the baby woke up. K.D. had her daughter's tablet in bed with her and L.L. noticed the tablet and took it. K.D. then asked L.L. to let her put the baby back to bed. They then went downstairs with the baby.

[87] This sequence of events leads to two issues that L.L.'s counsel says go to K.D.'s credibility and reliability. The first is the location of the tablet. There is some inconsistency in K.D.'s evidence about whether the tablet was on the bed or under the covers on the bed. In my view, nothing turns on this inconsistency. It is a peripheral detail that does not change the thrust of K.D.'s evidence. She had the tablet in bed with her; L.L. saw it and took it from her.

[88] The second issue is that, in her original description in chief of what happened when L.L. arrived at the house, K.D. did not mention that, in the interaction while she was lying on the bed, she asked L.L. how he got into the house. Later in her examination in chief she was asked whether she ever came to know how L.L. got into the house, and she responded that she had asked him, he had told her that he had entered through the basement window and he had raised his shirt and shown her some markings along his stomach.

[89] I am satisfied that this discussion also took place when K.D. first saw L.L. in the bedroom. First, the fact that K.D. did not originally mention this discussion does not mean that it did not happen. During her examination in chief she was asked the non-leading question "Did you ever come to know how [L.L.] gained access to your house?" and provided the evidence in response. The evidence was not inconsistent with anything that she had said previously and the fact that her version of events came out in pieces is not something that, on these facts, has any significant impact on K.D.'s credibility or reliability.

[90] K.D. and L.L. then went downstairs with the baby. At this point, K.D. testified that L.L. is oscillating (my word) back and forth between a state of anger and a state of apology. K.D. was holding the baby, and L.L. was demanding that she give him the baby. At one point in this interaction, K.D. testified that L.L. was uttering threats such as "I'll fucking kill you all" and threatening to burn the house down with K.D. and her children in it. There are credibility and reliability issues in respect of the threats, and I will return to them below.

[91] K.D., L.L. and the baby were downstairs for some time. After a while, K.D. testified that L.L. let her take the baby back upstairs and put him to bed. She did so and returned downstairs. She does not know what L.L. was doing in this time period. K.D. also testified that she had decided that she was going to be submissive because of L.L.'s behavior and because of the threats that he had made to the children. Finally, K.D. testified that, at points, L.L. was mumbling and incoherent.

[92] K.D. then returned downstairs and she and L.L. went to the garage where they engaged in small talk for approximately an hour. At that point, K.D. described L.L.'s mood as "calm". She told him that she was going to check on the children and go to bed, and he let her do this.

[93] K.D. went upstairs to the bedroom where the children were sleeping. Shortly after, L.L. came upstairs and started to call out to K.D. asking her to come to her father's room. On K.D.'s evidence, at first L.L. was calling her in a low voice. She said no. L.L. continued to call her and, after having called her the third time, became angry. L.L. said to K.D. words to the effect of "come to your fucking dad's room now."

[94] K.D. got up and got out of her bedroom and met L.L. in the hallway. He said again, go to your dad's room. And hen he said words to the effect of "you're going to suck my fucking dick, or I'm going to kill you and your kids." K.D. then proceeded to perform oral sex on L.L. for approximately ten minutes. She then left and went to sleep.

[95] One of the biggest challenges to K.D.'s credibility and reliability is the issue of whether L.L. threatened her. L.L.'s counsel asked a series of questions in respect of the threats that K.D. claimed were made against her and her children. At some points in her evidence, K.D. stated that the threats were to kill her and her children, while at other points she testified that the threats were only to kill her.

[96] L.L.'s counsel argues that the inconsistencies in the threats demonstrate that I should have a reasonable doubt as a result of the lack of clarity in K.D.'s evidence. I disagree. K.D. has been unable to recall the precise words of the threats since she gave her police statement. She just recalls that L.L. uttered threats and that they were words along the lines of "I'll kill you if you don't suck my dick." While K.D. cannot remember every event of that evening, she has a clear memory of a threat along these lines.

[97] In L.L.'s written submissions, there is a detailed review (at para. 185) of a whole series of alleged inconsistencies and/or things that K.D. cannot recall. I have dealt with a number of those issues above. I do not intend to specifically address them all. However, I would note the following:

a) A number of these points, including whether K.D. could remember the medications that L.L. was taking, how much of the whisky was drunk early in the evening, what L.L. said when he locked her out of the house and which way he went when he drove away from the house are obviously peripheral points that one would not expect to remember five years later.

b) The fact that, when L.L. returned with her car (and the window was broken), K.D. did not recall that she met L.L. outside and they walked into the house together is a more significant detail to forget, but it is still understandable detail to forget. That interaction was less significant than the final series of interactions after L.L. returned from C.S.'s house and broke in through the basement window.

[98] There are some peripheral details that K.D. has either forgotten or gotten wrong. However, the narrative arc of her evidence has been clear and consistent throughout. It is also a credible series of events and is corroborated. In that respect, I note that C.S. confirms that he came back to K.D.'s house to take L.L. away from her, and that L.L. left C.S.'s house shortly after. I also note that L.L. remembers the fight and remembers breaking K.D.'s phone.

[99] In addition, K.D.'s viva voce evidence is not the only evidence that I have. The next day, she took photographs of the injuries that she had suffered. There was visible bruising on her left arm and throat. While this evidence is neither clearly corroborative nor paramount, it is a piece of evidence that supports her testimony that L.L. put his hands around her throat when he entered the house through the basement window.

Conclusion on Counts 2 to 5

[100] I start with Count 2. The elements of this offence are made out, with the exception of the intent element, which I will discuss in the section on automatism.

[101] This brings me to Counts 3, 4 and 5, which I will consider together. I have reviewed in detail a number of the concerns that L.L.'s counsel has raised with K.D.'s credibility and reliability in my summation of the evidence. As I have set out above, I have generally found K.D.'s evidence to be credible and reliable, and I have not found that the inconsistencies identified by L.L.'s counsel derogate, in any meaningful way, from that evidence.

[102] There are a couple of more general issues in respect of credibility and reliability that I should address. There is K.D.'s lack of memory about filing a police report to address the broken car window. This is a gap in her memory. However, she was clear in her evidence that someone else paid to deal with the broken window. She thought it had been L.L.'s parents. This gap is both understandable and trivial when the merits of the case are considered.

[103] Finally, there is the relationship between K.D. and P.M. As I have discussed above, I found P.M.'s evidence to be neither credible nor reliable and I have rejected it. I also acknowledge that K.D. and P.M. spoke on a couple of occasions about their respective circumstances. These conversations were part of the reason why I reject P.M.'s evidence, as it is quite possible that evidence was tainted by P.M.'s conversations with K.D.

[104] However, I am much less concerned about the effect of these conversations on K.D.'s evidence for two reasons. First, P.M. was unlikely to be able to tell K.D. about these incidents, as P.M. was not aware of them, except for what she had previously learned, either from L.L. or from attending hearings in the case or reading transcripts. Second, K.D.'s police statement was taken, and her preliminary inquiry evidence was given before she and P.M. spoke. If there had been a significant change to a material part of her story as a result of her conversations with P.M., I would expect that to have been illustrated in the evidence. I saw no indication of this.

[105] L.L.'s counsel also argued that K.D.'s lack of knowledge of P.M. was "feigned" and that it was the equivalent of K.D. asking "who is C.D.". There is no merit to that submission. K.D. had a couple of telephone conversations with P.M. On the evidence of both of them, P.M. did a lot more talking than K.D. did. C.D was someone that K.D had known for years. It is unlikely that K.D. would forget C.D. It is quite possible that K.D. would have to be reminded of P.M., particularly since K.D. did not participate in P.M.'s trial, was not involved in the allegations respecting P.M. and had no first-hand knowledge of them.

[106] A related point is the issue of whether K.D.'s motivations might have resulted in her evidence being less credible or reliable. L.L.'s counsel suggests that K.D. was angry with L.L. and that this anger might have affected her evidence. I am not persuaded by this submission. K.D.'s anger would have been about these incidents, rather than about something else. As a result, there is no motive to make up these events in order to get revenge on L.L. for something else. It could be argued that there might have been a motive for K.D. to have lied about the sexual assault allegations because of the fire. However, in my view, that did not happen. L.L. acknowledges in his own evidence that K.D. told him about this incident and what he said within a couple of days of the incident, and L.L. and K.D. went to some counselling about it. Those discussions were before the fire.

[107] For the foregoing reasons, I am left in no reasonable doubt that L.L. threatened K.D., that K.D. believed those threats to be real, and that L.L. coerced K.D. into performing oral sex against her will on him. In other words, I am left in no reasonable doubt that the actus reus for the offences of utter threats and sexual assault have been established. I will address the mental elements of these offences under the automatism discussion.

The June 15-16, 2019 Incidents

[108] The following charges relate to this incident:

Count 6: [L.L.] further stands charged: That he, on or about the 16th day of June 2019, at the City of Brampton, in the Central West Region, did in person, knowingly utter a threat to [K.D.] to cause death to [K.D.], contrary to section 264.1(1)(a) of the Criminal Code of Canada.

Count 7: [L.L.] further stands charged: That he, on or about the 16th day of June, 2019, at the City of Brampton, in the Central West Region, did escape from lawful custody while being under arrest in the back of a police cruiser, contrary to section 145(1)(a) of the Criminal Code of Canada;

Count 8: [L.L.] further stands charged: That he, between the 15th day of June, 2019, and the 16th day of June, 2019, at the City of Brampton, in the Central West Region, did intentionally or recklessly cause damage by fire, to a dwelling house, the property of [redacted], contrary to section 434 of the Criminal Code of Canada;

Count 9: [L.L.] further stands charged: That he, between the 15th day of June, 2019, and the 16th day of June, 2019, at the City of Brampton, in the Central West Region, did break and enter a certain place, to wit: a dwelling house, situate at [redacted], and did commit an indictable offence therein, contrary to section 348(1)(b) of the Criminal Code of Canada.

[109] The Crown has invited me to dismiss Count #6 on the basis that, while it could be "departicularized" by way of an amended indictment, the Crown is not seeking that remedy. I accept that invitation and will enter a verdict of not guilty on Count #6. This brings me to the remaining counts of the indictment. I will deal with Count 8 and 9 together, as they both deal with the setting of the fire in K.D.'s residence and took place before the alleged escape from the police cruiser, which is Count 7.

Counts 8 and 9

[110] The elements of Count 9, break and enter and commit an indictable offence are similar to the elements of Count 2, break and enter with intention. Those elements are set out at paragraph 73. The only difference between the two counts is that, instead of having the intention to commit the offence, the person charged must have actually committed an indictable offence.

[111] The charge of arson under Count 8 is brought under section 434 of the Criminal Code. It is the section that deals with the intentional or reckless damaging of property by fire. The elements of the offence are as follows:

a) That L.L. caused damage to property by fire or explosion;

b) That L.L. caused the damage intentionally or recklessly; and

c) That L.L. was not the sole owner of the property.

[112] The third element, ownership, is made out on the facts before me. The evidence that K.D.'s father owned the property in question was uncontroverted. Assessing these two offences requires me to consider the events of the late evening and early morning of June 15th-16th, 2019.

[113] In making that assessment, I note that R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574 sets out that, for arson, the actus reus is the damaging of property by fire and the mental element is the intentional or reckless performance of an illegal act (see para. 48). It is a general intent offence, and the Supreme Court notes that self-inflicted intoxication that does not rise to the level of automatism is not a defence to a charge of arson.

[114] In this case, I have found the evidence of P.M. cannot be relied upon. As a result, the only evidence that I have in respect of the arson is circumstantial. As a result, I must apply the principles set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 to this case. In Villaroman, the Supreme Court stated (at para. 30):

[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The convictions for obstructing a peace officer in the execution of his duty and escaping lawful custody can only be sustained if Constable Parsons was engaged in the lawful execution of his duty when he arrested the appellant.

[115] This court has outlined the principles in Villaroman in R. v. Smart, [2022] O.J. No. 2363 at paras. 161 to 168. There are two further points in respect of the law that I must keep in mind. First, the Crown's case must neutralize other reasonable possibilities. However, the Crown's case is not required to negate "every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] SCR 2 at p. 8, Villaroman at para. 37.

[116] Further, in considering the circumstantial evidence, I must weigh its cumulative effect. As set out in R. v. Hudson, 2021 ONCA 772, (2021) 158 O.R. (3d) 589 at para. 70:

[70] The assessment of circumstantial evidence, whether by triers of fact at first instance or by an appellate court on a review for unreasonableness, does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King, 77 C.C.C. 75 (S.C.C.), at p. 76.

[117] In other words, I must approach the circumstantial evidence holistically and not in isolation.

[118] With these legal principles in mind, I will deal with the factual basis for these two charges together, and I will leave the question of the intent until my analysis of automatism. The first question I must answer is whether there were fires that were set intentionally in the property. In this respect, I have the opinion evidence of Mr. Lock.

[119] Mr. Lock outlined the role of a fire investigator. That role is to enter into a fire scene and determine whether the fires were accidental, intentional or undetermined. An accidental fire is one that, for example, can develop from a pot of oil left on a stove unattended. A fire that was set through intentional arson is one that is set deliberately by a human. Mr. Lock does not make conclusions about whether a fire is arson within the definition of the Criminal Code. Instead, he simply determines whether the fire was set intentionally or not. An undetermined fire is one where the cause cannot be determined.

[120] In this case, Mr. Lock determined that the fires in K.D.'s residence were set intentionally. In reaching this conclusion, he inspected the property and conducted a number of tests. As part of his conclusions, he noted that there were three separate sources of ignition as follows:

a) There was a pile of clothing on the laundry room floor that was charred and damaged. I will refer to this as the "laundry room fire",

b) There was more significant damage to the storage area under the stairs leading down from the main level of the home to the basement. That damage was sufficient enough that the staircase to the basement was unusable. I will refer to this as the "storage area fire".

c) There was some damage to the curtains in the living room on the main floor. Those curtains were of a type of plastic (or polymer) fabric that would not sustain a flame or a fire if they were not subjected to a continuous external source of heat. In other words, to cause damage to the curtains, an ignition source (such as a lighter) had to be held up to the curtains continuously. If that was done, the material in the curtains would melt in a steady drip and would re-form on the floor. I will refer to this as the "curtains fire".

[121] In cross-examination, it was suggested to Mr. Lock that it was possible that electrical arcing might have started the fire under the basement stairs. Mr. Lock testified that was a possibility. However, he had ruled that possibility out because of the fact that there were two other fires started at the same time.

[122] In cross-examination, counsel suggested to Mr. Lock that it was possible that the other two fires had started as a result of transference from the storage area fire. He rejected that possibility for each fire. In respect of the laundry room fire, Mr. Lock pointed out that there was no damage to the ceiling area in the laundry room, or to some of the articles of clothing that were hanging above the charred clothes in the laundry room. For the fire to transfer from the storage area fire to the area in the laundry room, there would have to have been some connection between the two fires. Nothing was observed.

[123] There was no path showing that the fire travelled across the floor and, far more importantly given that heat rises, there was no damage to the ceiling between the laundry room fire and the stairs fire. Damage to the ceiling might have arisen had a "thermal layer" or a "buoyant layer" of very hot air developed. A thermal layer develops when there is a great deal of heat from an active fire. The hot air has nowhere to go and may come down through the top of an adjacent room. However, if that happens, there would be evidence of damage in the ceiling area in the laundry room right above the fire (particularly to the joists and the sub-floor of the floor above), and the clothes hanging almost directly above the site of the laundry room fire would have been charred. None of this was observed, although there was evidence that the tops of the doors had been burned away.

[124] Finally, defence counsel suggested the possibility of an ember or a brand transferring between the storage area fire and the laundry room fire. The problem with that theory is that embers, as described by Mr. Lock, tend to be self-extinguishing. Mr. Lock also sifted through the debris in the laundry room fire and did not find any wood that might have been a brand. He also did not find any metal debris that would have suggested an exploding battery or something else from the storage area fire that could have caused the laundry room fire to ignite.

[125] Then, for the curtains fire to have been started by the storage area fire, it would have had to have been conducted there by a thermal layer or by heat through the ventilation system. On the evidence I heard, that is also not possible. The curtains were not over the ventilation duct when Mr. Lock found them. It was suggested to Mr. Lock that the curtains might have been moved between the time of the fire and the time of Mr. Lock's investigation a day and a half later. There was another investigator on scene before Mr. Lock arrived. That investigator took some photos but did not move anything and was called away as a result of a family emergency.

[126] I reject the possibility that the curtains were over the ventilation duct or that the storage area fire started the curtains fire for two reasons. First, the curtains were not over the ventilation duct or that the storage area fire started the curtains fire for two reasons. First, the curtains were not over the ventilation duct when flame was applied to them. I reach this conclusion because of the fact that the curtains melted and re-solidified on the ground in the spot that they melted. The fabric that had melted and re-solidified was close to the curtains where they were found and was some distance away from the ventilation duct. Given the evidence that the polymers in the curtains would have melted and re-formed in a puddle below the curtains, it is physically impossible for the curtains to have been over the ventilation duct.

[127] Second, I reject the possibility of the storage area fire causing the curtains fire because there was no fire damage around the vent near the curtains. Had the heat travelled through the vent and been hot enough to cause the curtains fire, it would also have been hot enough to cause charring around the vent, and that was not present either.

[128] For all of these reasons, I find beyond a reasonable doubt that three separate fires were set in K.D.'s home in the early morning hours of June 16th, 2019. These fires were set by a human agent and were not caused by an accident, such as arcing.

[129] Having determined that fires were set by a human who had entered into the property, I must then determine whether I am satisfied, beyond a reasonable doubt, that it was L.L. who broke into the house and set the fires rather than some other person.

[130] I am satisfied that it was L.L. (and not some random person) who broke into the house and set the fires in the early morning hours of June 16th, 2019. First, he knew how to get into the house even if the main entrances were locked. He had entered through the basement window less than a month previously. As a result, he had the ability to gain entrance to the property. I acknowledge that, when the investigation was done, the basement window, the garage door and the front door were all open. If the open doors were all the evidence I had, then there might be other reasonable inferences available and it might be possible that some random person off the street set these fires. However, it is not all the evidence I have.

[131] Second, there is the fact that L.L. and K.D. had been having a fight that evening. That provides some motivation for L.L. to have set the fire. This motivation is enhanced by previous threats that L.L. made to burn K.D.'s house down if she did not do what he wanted and the fact that L.L. had been required to leave C.S.'s house less than two hours before the fires were set.

[132] Third, there is the fact that, at approximately the moment that the fire started, L.L. texted K.D. and said "should of just talked to me". This text message suggests that L.L. had taken an action that K.D. was not going to like because she had not talked to him. No one suggested any action that L.L. took that would have made K.D. upset other than setting the fire.

[133] From all of these facts taken together, the only reasonable inference is that L.L. was the person who set the fires in K.D.'s house in the early morning hours of June 16th, 2019.

[134] Counsel for L.L. suggests that it could have been set by some random person off the street. In my view that suggestion is speculative at best. If I were to accept this suggestion, I would have to accept that a random person picked this house, walked into it and set three fires right at the moment that L.L. sent a text to K.D. suggesting that he was doing something she would not like. This is not a reasonable possibility.

[135] I should also note the possibility that K.D.'s ex-partner, J.C., might have set the fires. There was no evidence in the record before me that suggested that J.C. and K.D. were having issues. The only evidence I did have is that L.L. did not like J.C. and did not like the fact that J.C. had been borrowing money from K.D. As a result, any claim that he set the fires is also speculative and I reject it as a reasonable explanation.

[136] I am satisfied beyond a reasonable doubt that L.L. set the fires. Having concluded beyond a reasonable doubt that L.L. set the fires, it follows that he was inside the property without authorization and that the actus reus of the break and enter charge is also satisfied beyond a reasonable doubt. I will return to the issue of intent for both charges below.

Count 7 - Escape Lawful Custody

[137] L.L. is charged with escaping lawful custody after he was arrested by Sgt. Garcia and placed into the cruiser being driven by Csts. Herdman and Galliher on June 16th, 2019. The elements of that offence are:

a) That L.L. was in lawful custody;

b) That L.L. escaped from that lawful custody; and,

c) That L.L. intended to escape from that lawful custody.

[138] Counsel for L.L. argues, in detail, that L.L. was not placed under lawful custody because the police were breaching the Charter at the time of L.L.'s arrest. In support of this position, counsel relies on the decision in R. v. Lauda, (1999) 45 O.R. (3d) 51. In that decision, the Court considered a case where an accused had been growing marijuana plants on a farm property that he was in possession of. There was a fence around the farm property. The police discovered the marijuana and entered onto the farm property to destroy the marijuana plants. Mr. Lauda was discovered on the property, chased down and arrested. He gave the police a false name. Mr. Lauda was charged with, inter alia, obstruction and escaping lawful custody.

[139] The Court of Appeal entered acquittals on both the obstruction and the escaping lawful custody charges, observing as follows:

[140] The analysis that I have brought to bear on Constable Parsons' warrantless entry and search of the cornfield leads me to conclude that at the time of arrest, he and his partner were unlawfully trespassing on private property and their presence on the property constituted a violation of the appellant's s. 8 rights. Under these circumstances, bearing in mind that the appellant was lawfully in possession of the leasehold property, it cannot be said that Constable Parsons was acting in the lawful execution of his duty when he arrested the appellant: see R. v. Thomas, 67 C.C.C. (3d) 81, 91 Nfld. & P.E.I.R. 341 (Nfld. C.A.), affirmed , [1993] 1 S.C.R. 835, 78 C.C.C. (3d) 575 n. Accordingly, the convictions on the Criminal Code offences cannot stand.

[141] The Court of Appeal cites the decision in R. v. Thomas, 91 Nfld. & P.E.I.R. 341, aff'd . Both decisions consider whether someone can resist lawful arrest when the arrests are conducted pursuant to a warrantless search where the officers are trespassing on private property.

[142] In this case, L.L. was placed under arrest lawfully in that the police arrested him in a public place where they had authority to be and they had reasonable and probable grounds to arrest him. The constitutional breach was the fact that the police did not caution L.L. about the fact that he was detainable for arson, thus violating his section 10(a) and 10(b) Charter rights. The question is whether this type of constitutional breach renders the arrest unlawful within the meaning of these decisions.

[143] In R. v. Omar, 2017 ONSC 5451, the Court was faced with a situation where the accused was arrested at his school and escorted downstairs. As he and the officers walked through the hall, he broke free and escaped from the police. He was charged with escaping lawful custody, the same charges as in this case.

[144] In Omar, the Court found that Mr. Omar was not given the reasons for his arrest by the officers. As a result, the Court found the accused not guilty of resisting arrest. The Court noted (at paras. 73 and 74):

[73] It is recognized at common law and by the Constitution that an arrest is lawful only if the accused is promptly made aware of the reasons for the arrest. Section 10(a) of the Charter of Rights provides that everyone has the right on arrest or detention to be informed promptly of the reasons for the arrest. The Ontario Appeal Court observed:

The interests protected by subss. (a) and (b) are not the same. With respect to subs. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie v. Leachinsky, [1947] A.C. 573 at 587-88, [1947] All E.R. 567 (H.L.). It is, accordingly, essential that he be informed promptly or immediately of the reasons.

R. v. Kelly, 1985 CarswellOnt 74, at para. 15, (Ont. Sup. Ct., C. A.)

[74] The Ontario Court of Appeal expressed the importance of this right in the following words:

Once detained, an individual is at the mercy of state actors. Thus, in the circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[145] In Omar, as in this case, there was no dispute that the accused was properly arrested by the police. However, since Mr. Omar's constitutional rights were not complied with, it could not be established beyond a reasonable doubt that Mr. Omar was guilty of the offence of escape lawful arrest. Given that I have found a breach of L.L.'s constitutional rights in this case that arose at the time of his first arrest by Sgt. Garcia, I must reach the same conclusion as the judge in Omar. L.L. is acquitted of this charge.

Intent and Automatism

[146] Given that I have concluded that L.L. committed the actus reus of various offences on both days, I need to consider whether the mental element of each offence is made out and, if so, whether the defence of automatism applies to vitiate the intent required for any of these charges. In that respect, the mens rea is an issue that I will need to address, and the test for whether the mens rea is met is different depending on whether it is a specific or a general intent offence.

[147] To that end, I will structure my analysis as follows:

a) A description of the law of automatism.

b) A review of the relevant general facts that emerge from the expert opinions.

c) Application of the law to the facts surrounding the events on May 18th-19th, 2019

d) Application of the law to the facts surrounding the events on June 15th-16th, 2019.

[148] I will deal with each area in turn.

a) The Law of Automatism

[149] I start my analysis with a consideration of what an automatistic state is. In R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, aff'd on other grounds 2022 SCC 19, the Court of Appeal described it this way (at para. 2):

[2] Automatism is defined as "a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action": R. v. Stone, [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The "mind does not go with what is being done": R. v. Rabey, [1980] 2 S.C.R. 513, [1980] S.C.J. No. 88, at p. 518 S.C.R., citing R. v. K., [1971] 2 O.R. 401, [1970] O.J. No. 1761 (H.C.J.), at p. 401 O.R.

[150] In explaining automatism, Courts have noted that an accused can be capable of complex, goal-oriented conduct but be incapable of exercising any control over these actions: R. v. Ludecke, 2008 ONCA 716, 93 O.R. (3d) 89. However, Courts have also accepted that a failure to remember certain events does not mean that an individual was acting involuntarily. It is, in short, a difficult area from both a factual and legal perspective.

[151] As a result of Charter issues, the law of automatism has developed over the last thirty years. That development begins with a consideration of R. v. Daviault, [1994] 3 S.C.R. 63. In Daviault, the Supreme Court found that the test set out in R. v. Leary, [1978] 1 S.C.R. 29 was a violation of the Charter.

[152] Leary held that the accused, by becoming voluntarily intoxicated, had committed the mens rea for a general intent offence. Daviault held that evidence of extreme intoxication involving the absence of awareness akin to automatism can raise a reasonable doubt as to the existence of the intent required for a general intent offence.

[153] Parliament responded by introducing section 33.1 of the Criminal Code, which eliminated the defence of self-induced intoxication for general intent offences that included "as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person." The purpose behind this amendment was, in general terms, to address issues of intoxication and violent crime.

[154] The section was applied until 2022 when, in R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, the Supreme Court struck it down as being unconstitutional. While Parliament has passed a revised section 33.1, cases where the alleged offences pre-date the enactment of the new section are governed by the common law principles, as modified by Daviault. In this case, the Crown does not dispute this position and I accept it. Parliament has not stated that the provision is retrospective, so it is presumed to be prospective and is not applicable to L.L.: R. v. Duck, 2022 MBQB 181 at para. 35.

[155] As a result, the common law principles in respect of automatism and substance abuse apply to this appeal. There are two types of automatism defences that are available. One is an automatism as a result of a "disease of the mind". This engages section 16 of the Criminal Code and, if a person is found to have a "disease of the mind" that has caused them to commit an offence, then they are to be found not criminally responsible.

[156] The second branch is non-mental disorder automatism. A finding of this type will result in an outright acquittal. This type of automatism is "very rare": R. v. Stone, [1999] 2 S.C.R. 290 at para. 199. In Luedecke, our Court of Appeal addressed the criteria that the accused would generally have to establish in the following terms:

[63] The broad definition of the term "mental disorder" has led to the channelling of most automatism claims into the NCR-MD pool. That trend reached its high water mark in Stone. Bastarache J., for the majority [at para. 199], went so far as to take judicial notice "that it will only be in rare cases [page110] that automatism is not caused by mental disorder". [See Note 5 below] Bastarache J. further observed, at para. 199, that trial judges should start with the assumption that the condition constitutes a disease of the mind. Trial judges should then look to the evidence to determine whether that presumption has been rebutted. After Stone, many argue that successful claims of non-mental disorder automatism will be limited to those very rare "one off" cases in which an accused suffers a single incident of automatism, and where the accused can point to some specific external event that precipitated that event, can demonstrate that the event is unlikely to reoccur, and finally, can show that the event could have produced a disassociative state in an otherwise "normal" person.

[157] In the previous paragraph, the Court stated that the accused had to establish these requirements. In both types of automatism defences, once the Crown has proven the element of intent for the offence, the burden of proof is on the accused to establish automatism or intoxication (depending on the offence) on a balance of probabilities. The reasons that the burden is on the accused is explained in Stone in the following terms (at para. 180):

180 In Chaulk, supra, and Daviault, supra, this Court recognized that although placing a balance of probabilities burden on the defence with respect to an element of the offence constitutes a limitation of an accused person's rights under s. 11(d) of the Charter, it can be justified under s. 1. In my opinion, the burden is also justified in the present case. The law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Like extreme drunkenness akin to automatism, genuine cases of automatism will be extremely rare. However, because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness. In contrast, saddling the Crown with the legal burden of proving voluntariness beyond a reasonable doubt actually defeats the purpose of the presumption of voluntariness. Thus, requiring that an accused bear the legal burden of proving involuntariness on a balance of probabilities is justified under s. 1. There is therefore no violation of the Constitution.

[158] Although this is a judge-alone trial, it is important to keep the three steps that the Court must go through in order to fully consider this defence. First, the Court must (as a matter of law) assess whether there is an air of reality to the defence. Second, if there is an air of reality to the defence, then the Court must determine whether mental disorder or non-mental disorder should be left with the trier of fact. Finally, the trier of fact must determine whether the defence is made out on a balance of probabilities.

[159] In this case, the first step is clearly met. The accused has testified and stated that he has no recollection of the events. He testified that he consumed considerable quantities of intoxicants, and this evidence was corroborated by Crown witnesses. Finally, he has tendered expert evidence from both a toxicologist and a psychiatrist to support his claim. This is all evidence on which a trier of fact, properly instructed, could accept the accused's defence: R. v. Fontaine, 2004 SCC 27 at para. 71.

[160] This brings me to the second step which is the classification of the potential automatism as either a disease of the mind or a non-mental disorder automatism. In R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, the Court discusses this issue in detail. For the purposes of my analysis, the Supreme Court notes (at para. 68) that a Court should start from the presumption that, when an accused was intoxicated while committing the actus reus, the temporary dissociative state is not a mental disorder. This presumption can be rebutted by the accused.

[161] Based on Dr. Gojer's testimony that L.L. had a substance abuse disorder in respect of alcohol and cocaine, which were the substances consumed, asked both parties to comment on whether I should be proceeding on the basis that this was, in fact, a disease of the mind. Both counsel advised that their position was that I should be approaching this as if it was not a disease of the mind.

[162] For the purposes of the analysis that follows, I accept this joint position, primarily on the basis that Bouchard-Lebrun states that that is the starting point for my analysis and that it is up to the accused to prove otherwise. However, I would note that Bouchard-Lebrun was decided before section 33.1 was struck down, and that there may be policy reasons (especially under the inherent danger branch of the test in Stone) to consider classifying an automatism defence as a disease of the mind when someone has a substance abuse disorder, particularly if that person has difficulties in voluntarily abstaining from intoxicating substances (see Bouchard-Lebrun, para. 82). Indeed, Dr. Gojer testified that the disorders might go to risk issues even though they did not cause the automatistic state. I do not have to decide that issue on the facts I have before me and will not consider it further.

[163] This brings me to the third branch of the test, which is the factual consideration of whether the accused can establish the defence on a balance of probabilities. As set out in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 (at paras. 41-43), there are three levels of intoxication:

a) Mild Intoxication – which is the relaxation of both inhibitions and socially acceptable behaviour and will never suffice to negate the usual inference that an accused intends the natural consequences of their actions.

b) Advanced Intoxication - the point where the accused lacks specific intent, to the extent that the accused's foresight of the consequences of their acts is impaired. Advanced intoxication can operate as a partial defence to specific intent offences and reduce the accused's culpability to any lesser and included general intent offence.

c) Extreme Intoxication - this is an extreme case, described in Daley as akin to automatism or a disease of the mind. It provides a complete defence, even to general intent offences.

[164] On this third point, the Court of Appeal in Sullivan noted, in respect of general intent offences (at para. 45):

[45] There are policy reasons that support criminal consequences when general intent offences are committed by those who choose to become intoxicated. However, the primary distinction between general intent and specific intent offences lies in the complexity of the thought and reasoning process required to commit the relevant offence: R. v. Tatton, [2015] 2 S.C.R. 574, [2015] S.C.J. No. 33, 2015 SCC 33, at para. 21. The mental states required to commit general intent offences simply relate to the performance of the illegal act with no further ulterior purpose; therefore, they involve "minimal mental acuity": Tatton, at paras. 35, 41; Daviault, at p. 89, per Cory J.; and R. v. Bernard, [1988] 2 S.C.R. 833, [1994] S.C.J. No. 77, at p. 863 S.C.R., per McIntyre J. These mental states tend to be so basic or rudimentary that, ordinarily, it is not realistic to believe that intoxication could prevent an accused who has committed the prohibited act from having the mental state the offence requires. Proof of intoxication is typically irrelevant in general intent offences, as the requisite mental state can usually be inferred from the mere commission of the act: Bernard, at p. 878 S.C.R., per McIntyre J.; Daviault, at p. 123 S.C.R., per Sopinka J. (dissenting on other grounds).

[165] It is important to keep in mind that an accused's lack of memory of an incident does not equate to automatism. Both experts who testified acknowledged that fact, which is also clear from the case-law.

[166] Finally, in this case, the parties are ad idem as to which charges require a general intent mens rea and which charges require a specific intent mens rea. That listing is as follows:

Charge	Classification
Assault contrary to s. 266 of the Criminal Code (Count 1)	General Intent
Break and Enter with the Intent to Commit an Indictable Offence contrary to s. 348(1)(a) of the Criminal Code (Count 2)	Specific Intent
Utter Threat to cause Death contrary to s. 264.1(1)(a) of the Criminal Code (Counts 3 and 6)	Specific Intent
Utter Threat to Damage Property contrary to s. 264.1(1)(b) of the Criminal Code (Count 4)	Specific Intent
Sexual Assault contrary to s. 271 of the Criminal Code (Count 5)	General Intent
Escape Lawful Custody contrary to s. 145(1)(a) of the Criminal Code (Count 7)	Specific Intent
Arson, contrary to s. 434 of the Criminal Code (Count 8)	General Intent
Break, Enter and Commit an Indictable Offence contrary to s. 348(1)(b) of the Criminal Code (Count 9)	General Intent

[167] With these legal principles in mind, I now turn to consider both the general issues raised by the expert evidence and the specific facts around each of the incidents.

b) General Considerations - Expert Evidence

[168] The two experts in this area testified after having had the benefit of both the entirety of the Crown's case and the testimony of L.L. The first expert, Dr. Mayer is a toxicologist and a pharmacologist. He testified about the effects of alcohol on a human body, as well as the speed at which alcohol would be absorbed and expelled by the body.

[169] One of the pieces of evidence that Dr. Mayer provided was a chart from a textbook outlining the general effects of various levels of alcohol in the body. That chart reads as follows:

BAC (g/100mL)	Stage of Alcoholic Influence	Clinical Signs and/or Symptoms
0.01-0.05	Subclinical	Behavior nearly normal by ordinary observation. Influence/effects usually not apparent or obvious. Impairment detectable by special tests.
0.03-0.12	Euphoria	Mild euphoria, sociability, talkativeness. Increased self-confidence; decreased inhibitions. Diminished attention, judgment and control. Some sensory-motor impairment. Slowed information processing. Loss of efficiency in critical performance tests.
0.09-0.25	Excitement	Emotional instability; loss of critical judgment. Impairment of perception, memory, and comprehension. Decreased sensatory response; increased reaction time. Reduced visual acuity and peripheral vision and slower glare recovery. Sensory-motor incoordination; impaired balance; slurred speech. Vomiting; drowsiness.
0.18-0.30	Confusion	Disorientation, mental confusion; vertigo; dysphoria. Exaggerated emotional states (fear, rage, grief, etc.). Disturbances of vision (diplopia, etc.) and of perception of color, form, motion, dimensions. Increased pain threshold. Increased muscular incoordination; staggering gait; ataxia. Memory loss. Apathy with progressive lethargy.
0.25-0.40	Stupor	General inertia; approaching loss of motor functions. Markedly decreased response to stimuli. Marked muscular incoordination; inability to stand or walk. Vomiting; incontinence of urine and feces. Impaired consciousness; sleep or stupor; deep snoring.
0.35-0.50	Coma	Complete unconsciousness; coma; anesthesia. Depressed or abolished reflexes. Subnormal temperature. Impairment/irregularities of circulation and respiration. Possible death.
Mean, median 0.36 (90% 0.21-0.50)	Death	Death from respiratory failure and/or cardiac arrest.

[170] Dr. Mayer testified that these are general effects, and that the specific effects that alcohol will have on various individuals will vary depending on a number of factors, including weight, height and age of the person. However, the ranges are a useful starting point for understanding how alcohol affects the body. One of the important factors in terms of how quickly a person can absorb and expel alcohol from their body is whether or not they are a regular, heavy user of alcohol.

[171] Dr. Mayer also testified that the body generally expels alcohol at a rate of 10 to 15 mg/ml per hour. However, heavy users of alcohol will expel it as a rate of 20 to 30 mg/ml. This higher rate is because a heavy user of alcohol can develop both a metabolic and functional tolerance of alcohol. The metabolic tolerance produces faster expulsion of alcohol, at least in the short term, while the functional tolerance is the ability to be upright and functioning with higher levels of alcohol in a person's system.

[172] L.L. testified that he consumed some of K.D.'s Clonazepam in the evening of May 18th, 2019. As a result, Dr. Mayer advised that Clonazepam could have a potentiating effect on a person who is using alcohol. A potentiating effect takes place when one substance amplifies the effects of another substance, even if the first substance is only present in small amounts.

[173] In this case, however, I conclude that the Clonazepam was not having a potentiating effect for the following reasons:

a) I accept K.D.'s evidence that it was a small number of pills that L.L. took. For reasons that I will come to, L.L.'s testimony about his consumption history is problematic and I do not accept that he took 6 or 7 Clonazepam pills.

b) Clonazepam was a new medication for K.D. As a result, Dr. Gojer, who has prescribed this medication to other patients, agreed that it would likely have been prescribed in small amounts, such as a 0.25 mg tablet. Therefore, even if I accepted L.L.'s evidence, the maximum amount of clonazepam that he would have ingested would have been 1.75 mg. I had testimony that 2 mg is still in the range of a therapeutic dosage. As a result, I am of the view that the Clonazepam did not have a potentiating effect on L.L.

[174] Dr. Mayer testified that cocaine acts on a person's body and leaves the system very quickly. There is no evidence of any cocaine consumption within a couple of hours of either of these events. As a result, the cocaine would not have had a significant effect on L.L.'s state at the time that the various incidents took place.

[175] Dr. Gojer accepted the general evidence about the expulsion of alcohol and the possible potentiating effects of Clonazepam. Dr. Gojer's evidence was more focused on the actual effects of the alcohol and other substances on L.L. However, Dr. Gojer also conceded that his views would change depending on what I found as the consumption history.

[176] Dr. Gojer also diagnosed L.L. with a substance abuse disorder in respect of both alcohol and cocaine, suggestions of a borderline personality disorder and ADHD. In other testimony, I was advised that L.L. takes medication for depression.

c) Application to the May 18-19, 2019, Events

[177] I start with Count 2 of the indictment. On the evidence I have accepted, the break and enter was some considerable time before the threats that led to the sexual assault took place. In dealing with this charge, the question on intent is whether L.L. had the intent to commit a further indictable offence at the moment that he gained entry into the house.

[178] Section 348(2) of the Criminal Code sets out the presumption that, absent evidence to the contrary, proof of breaking and entering is proof of an intention to commit an indictable offence. In this case, however, I have evidence to the contrary.

[179] Specifically, when L.L. entered the house and went upstairs to find K.D., it is clear that L.L. was angry with K.D. He put his hands on her neck when he saw her. However, I accept K.D.'s evidence that L.L. had moments where he was mumbling and incoherent after he broke into the house. L.L. also told K.D. that he was angry with her for calling L.L.'s mother.

[180] As I have outlined, for this offence, L.L.'s intention must be ascertained as at the moment he broke into the house. Given that he wanted to confront K.D. about the fact that K.D. had called L.L.'s mother, I cannot conclude beyond a reasonable doubt that L.L. had the intention to commit an indictable offence when he entered K.D.'s house through the basement window. Given this conclusion, the question of automatism or intoxication short of automatism does not arise in respect of this offence. As a result, L.L. is acquitted of this charge.

[181] This brings me to Counts 3 to 5. The uttering threats counts are specific intent offences and the sexual assault is a general intent offence. I start with the intention for each offence. As I noted at paragraph 77, there is no basis for concluding that the threats uttered by L.L. were anything other than threats. They had the effect of coercing K.D. to perform oral sex on L.L. Had L.L. been sober, I would have no hesitation in concluding beyond a reasonable doubt that the mental elements for both utter threats (as a specific intent offence) and sexual assault (as a general intent offence) were met. However, intoxication and automatism must be considered.

[182] As a result, I must consider L.L.'s history of alcohol consumption on that evening. Defence counsel argues that L.L. consumed most of a 40 ounce bottle of Canadian Club whisky. He also suggests that L.L. consumed perhaps 10 to 20 "tall boy" Molson Canadian beers that evening. I have concluded that L.L.'s consumption history is substantially lower than what was suggested.

[183] I start with the beers. L.L. testified that he had purchased 12 of the "tall boy" Molson Canadian beers when he and K.D. had gone shopping that afternoon. I did not hear any evidence about an additional source of beer for L.L. to consume. As a result, I conclude that he only consumed 12 beers in the evening of May 18th, 2019.

[184] This brings me to the consumption history as given by L.L. more generally. As I have previously indicated, I have significant concerns with that evidence. Those concerns are as follows:

a) L.L. had a curiously precise recollection of his alcohol consumption both on the evening of May 18th-19th, 2019 and on the evening of June 15th-16th, 2019. Given the amounts he alleges he consumed and the effect that they would have had on him, there is no way that he would have been able to precisely remember this history and completely forget the events leading to the charges. I reject his evidence in this respect.

b) On a related point, L.L. agreed in cross-examination that drinking makes it hard to remember the details and that portions of his memory "go by the wayside" during periods of heavy drinking. This is a further reason to reject L.L.'s precise version of his drinking history on both days.

c) As an illustration of the problems with such a precise consumption history, L.L. acknowledged that he was on a "bender" for several days in June of 2019, immediately before these events. He could not remember what he had drunk during that bender.

d) On the night of May 18th, 2019, K.D. testified that the Canadian Club bottle was a 26 ounce bottle rather than a 40 ounce bottle. She also testified that the bottle had been opened and that some of it had been consumed. Further, she testified that she hid the bottle on L.L. when he had been drinking too much. There was as much as a third of a bottle left when she hid it. I accept this evidence. I have already outlined my conclusions in respect of K.D.'s credibility above. I also accept that a 26 ounce bottle was more likely what K.D. had purchased. Finally, I understand that L.L. put the whisky into a glass boot and drank it out of the boot. However, I had no clear evidence on the amount of liquid the boot would hold.

[185] I also find it incredible that L.L.'s memory would have been such that he would have remembered almost nothing after the fight except taking six or seven of K.D.'s Clonazepam. In his materials, defence counsel argued that L.L.'s evidence was not self-serving or lacking in credibility. On this point, I disagree. While it is possible that L.L. might have remembered only the Clonazepam consumption, it is far more likely that this was testimony that was designed to bolster L.L.'s defence.

[186] More generally, L.L.'s counsel argued that he did not seek to paint himself in a good light and acknowledged his addictions, to having been a drug dealer and to his difficult relationship with P.M. These facts were independently ascertainable and, as a result, L.L. would need to admit to them to avoid being impeached on cross-examination. The fact that he admitted these facts does enhance L.L.'s credibility, but not to the extent suggested by counsel.

[187] As a result, the history of consumption that Dr. Mayer analyzed is overstated. I then turn to the other evidence I have about intention and automatism, starting with the evidence of K.D. She testified about two significant facts:

a) That L.L. was mumbling and somewhat incoherent at some points.

b) That L.L.'s mood was oscillating back and forth between anger and sadness.

[188] Each of these facts, taken on their own (or together) might suggest that L.L. was in a state of reduced capacity. However, these facts are not all of the evidence. When L.L. arrived at the house, he was mumbling and somewhat incoherent. However, between that time and the events giving rise to the charges, there was no evidence of any substance consumption. As a result, L.L. would have become less impaired during that time period.

[189] Then, on the issue of the mood swings, Dr. Gojer acknowledged in cross-examination that the borderline personality disorder that he had identified in L.L. might be causing some of the mood swings, especially since his inhibitions would have been depressed by the alcohol.

[190] Finally, we need to consider the sequence of events that leads to L.L.'s demand for oral sex. When K.D. went upstairs, L.L. remained downstairs for a period of time. He then engaged in what Dr. Gojer acknowledged in cross-examination were "several steps of goal-oriented behaviour". These steps were as follows. First, he came upstairs. Then he would have had to know to go towards the bedroom where he would have known K.D. was located. Then, he would have had to have known to make a demand for oral sex and to suggest that this should be done in a different room. Finally, he would have had to have the ability to take off his boxers and pants, and do so in one motion as described by K.D.

[191] In cross-examination, Dr. Gojer acknowledged that this demonstrated that the mind and the body were not disconnected, as the mind wanted something and the body was taking steps to achieve it. I am satisfied that L.L. was not in an automatistic state. In other words, he was not in a state of extreme intoxication as described in Daley. He had the ability to form the intent necessary to be found guilty of a general intent offence.

[192] This brings me to the question of whether he was sufficiently intoxicated at this point that his foresight of the consequences of his act was impaired. Again, I reject the assertion that he was in a state of advanced intoxication. L.L. had the ability to understand that he was threatening K.D. and the ability to understand that those threats could be used to obtain the sexual services that he was seeking from K.D.

[193] For those reasons, L.L. is guilty of both uttering threats and of sexual assault.

d) Application to the June 15-16, 2019, Events

[194] Based on the evidence I heard, there is no doubt that, even at the time the fires were set, that L.L. was under the influence of some substances. It is useful, therefore, to briefly consider what his consumption history on this night was. I have outlined at, inter alia, paragraph 184, my concerns with L.L.'s evidence about his consumption history. As a result, I do not view his testimony about what he drank when he was at his friend K.'s house as being reliable.

[195] It is clear, however, that L.L. consumed some cocaine at the beginning of the evening. That fact is confirmed in both his evidence and the evidence of C.D. and C.S. As discussed at paragraph 174, above, the consumption of cocaine was unlikely to have affected L.L.'s mental state several hours later, when the fires were set.

[196] L.L. also consumed a quantity of alcohol that evening. It is difficult to know with precision how much alcohol was consumed. At the beginning of the evening, he drank a couple of beers and had some of K.D.'s Canadian Club whisky, which was in the freezer at C.S.'s house.

[197] L.L. then had a confrontation with K.D., which they both testified to. L.L. then left and went to the LCBO. Some alcohol was purchased but, as I have said, I do not view the history of consumption provided by L.L. as being accurate. How much alcohol was consumed at L.L.'s friend K.'s house is unclear. However, L.L. remained upright, able to function and able to return to the party to look for K.D. The others at the party observed that, when he returned, he was "out of control". I turn to the question of how useful that evidence is.

[198] Dr. Gojer was taken through a number of examples of testimony from the other witnesses and asked to explain what that testimony meant in terms of L.L.'s level of intoxication. I did not find that evidence either helpful or persuasive and I reject it. I do not intend to review every example of this type of evidence. However, one example will suffice to illustrate my concerns, especially with the evidence around the evening of June 15th-16th, 2019.

[199] C.S. testified about L.L.'s state on June 15th, 2019, after L.L. had been away from C.S.'s house for several hours. When L.L. returned, C.S. confirmed that he was not slurring his voice as much as he had been previously but that L.L. was higher than he had been when he left. Dr. Gojer acknowledged in his examination in chief that this "seems a little bit of a contradiction."

[200] Everyone who was at the party at C.S.'s house and who testified (except K.S.) was consuming some sort of substance that might have had an effect on their memory. As a result, I view the evidence of the witnesses at the party about L.L.'s state of intoxication to be unhelpful except to establish that L.L. was significantly intoxicated when he visited the house for the last time a couple of hours before the fire was set.

[201] More generally, however, the consideration of these events is easier in determining whether L.L. had the necessary intent to be found guilty of the break and enter and the arson, as there is more objective and concrete evidence as to his intentions. The existence of this evidence reduces the importance of the earlier history of consumption, as it shows L.L.'s level of functioning at the time that the fire is set.

[202] That evidence comes from the following sources:

a) The text message to K.D. about talking to him. As I have described, sending a text message right around the time the fire started saying "Should of just talked to me" is a strong indicator of both L.L.'s presence at the scene and his intent.

b) The manner in which the drapes were burned. As Mr. Lock described, those drapes would not catch fire independently as they were made of a fire retardant material. The extensive burns on the drapes strongly suggest someone spent some time trying to get the drapes to burn. That is a clear indication of intent.

c) The fact that there were three separate sources of fire in the house indicates someone who was deliberately trying to burn the house down.

d) The fact that a pile of clothes was heaped in the centre of the laundry room and set on fire is also indicative of someone who was deliberately trying to burn the house down.

e) The fact that a fire was set to cardboard and other potentially flammable materials under the stairs suggests intent in two respects. First, the cupboard would have had to have been opened and deliberately entered. Second, the materials would have had to have been set on fire by deliberate action.

f) The text exchanges that follow the "should of just talked to me" message between L.L. and K.D demonstrate L.L.'s abilities in two respects. First, Dr. Gojer testified that, at 150 mg/ml of alcohol in the bloodstream, there would be difficulties in sending text messages. L.L. is able to send several messages, and they are not (other than the "of" in the message reproduced earlier int his paragraph) full of typos. Second, L.L. is able to figure out that it is C.D. who is responding to the text messages, and to attempt to make her relationship with C.S. more difficult by texting "you should tell [C.S.] to stop getting blowjobs at the strip clubs to". This is all strong evidence that L.L. was not at an advanced or extreme level of intoxication within the meaning of the test set out in Daley.

[203] I find the fact that L.L. had made threats to burn K.D.'s house down previously also assists me in reaching the conclusion that the fires were set deliberately and that L.L. knew at the time that he was setting the fires what he was doing and intended to set them. In that respect, I also note that L.L. had previously expressed an intent to set fire to K.D.'s house if she did not accede to his wishes.

[204] When all of this evidence is taken together, I am satisfied beyond a reasonable doubt that L.L. had the necessary intent to commit both the specific intent offence of break and enter and the general intent offence of arson. He knowingly broke into K.D.'s house, he knowingly set the fire and he knew that it would have a negative effect on K.D. I am also satisfied that L.L.'s ability to form the intent for both charges was not affected by his substance consumption. As a result, L.L. is guilty of both Count 8 and Count 9 of the indictment.

Disposition

[205] For the foregoing reasons, I find as follows in respect of the charges on the indictment:

a) Count 1 - Not Guilty.

b) Count 2 - Not Guilty.

c) Count 3 - Guilty.

d) Count 4 - Guilty.

e) Count 5 - Guilty.

f) Count 6 - Not Guilty.

g) Count 7 - Not Guilty.

h) Count 8 - Guilty.

i) Count 9 - Guilty.

[206] I should conclude my reasons by thanking all three counsel for the professional manner in which this very complicated case was argued as well as the excellent written submissions that they provided on the merits of the case. Counsel's assistance made this case easier to consider and resolve.

LeMay J.

Released: September 8, 2025